Heard Sri Ratnesh Kumar Pandey, learned counsel for the revisionist.
The revisionist had filed Original Suit No.730 of 2008. It is said that in the aforesaid suit defendants failed to file written statement within time. Subsequently, when the written statement was filed the same was accepted on payment of cost vide impugned order dated 9.9.2010.
Aggrieved the revisionist has preferred this revision.
Learned counsel for the revisionist contends that on failure of the defendants to file written statement within time, an application was moved on behalf of the revisionist to pronounce the judgment. The court allowed the application on 18.7.09 and passed an order that the judgment would be pronounced after lunch. Thus, it is submitted that without recalling the above order, the court could not have accepted the written statement.
Order 8 Rule 1 C.P.C. do provides for the defendants to the suit to file written statement within 30 days from the date of service of summons. It also provides that where written statement is not so filed within 30 days of service of summons, the court for reasons to be recorded in writing shall allow it to be filed within 90 days. In other words, the period of 30 days so provided is not absolute and is extendable up to 90 days form the date of service of summons provided reasons are recorded for the same. It is settled legal position that in view of the purpose of bringing about amendment in the Civil Procedure Code, the observance of time schedule contemplated for filing written statement is a rule and any departure therefrom is only an exception that too far satisfactory reasons to be recorded. However, as it is a part of procedural law though the time schedule ought to be adhered, but in rare and exceptional circumstances its breach can be condoned and the rule is not to be treated as mandatory but directory in nature.
In the instant case, admittedly the service of notice upon the defendants was held to be sufficient vide order dated 15.5.09. The written statement was filed and ordered to be taken on record on 29.7.09 within about two and half months from the deemed service of the notice upon the defendants. This was done within a period of 90 days, the outer limit for filing of written statement contemplated by Order 8 Rule 1 C.P.C. In accepting the counter affidavit the court below took the explanation of the defendants to be true and for the reasons so recorded ordered for the acceptance of the written statement subject to payment of cost.
No doubt, Order 8 Rule 10 C.P.C. contemplates that when the written statement is not filed within the time permitted, the court shall pronounce the judgment but in the present case the extended time for filing written statement i.e. a period of 90 days would have expired on 15.8.09. Therefore, the court could not have pronounced the judgment before the said date. Even otherwise the judgment as proposed was not pronounced on 18.7.09 or till the passing of the impugned order. Thus when the judgment was not pronounced for one reason or the other, the court was not precluded in law from taking on record the written statement in exercise of its powers under Order 8 Rule 1 C.P.C.
In this view of the matter, I am of the view that the court below has not committed any jurisdictional error in accepting the counter affidavit of the defendants and in passing the order impugned dated 9.9.2010 irrespective of the fact that it had earlier decided to pronounce the judgment in the absence of the written statement.
In view of the aforesaid facts and circumstances, the revision has no merit and is accordingly dismissed.
Order Date :- 22.10.2010 piyush